To: Committee Secretary: samesex.marriage.sen
Select Committee on the Exposure Draft of the Marriage Amendment (Same-Sex Marriage) Bill
Department of the Senate
I am a gay man in a long term relationship of more then twenty years. I have been involved in the LGBTI community here and in the UK since the early 1970’s.
I helped to found Gay News, England’s first LGBTI newspaper, and its second, Gay Week. I was active in the London Gay Liberation Front, and founded the first suburban gay group in London, still going strong, now known as the North West London Lesbian and Gay Group.
After migrating to Australia in the 1990s, I edited Melbourne Star, one of the local gay newspapers, for several years, and presented news and current affairs on Australia’s Gay & Lesbian radio station, Joy 94.9, for many more. I also served as the Secretary, and later President, of the Daylesford ChillOut Festival, the largest regional LGBTI festival in Australia, and was instrumental in setting up the Kaleidoscope Human Rights Foundation, serving briefly on the board, to advocate for LGBTI rights across the Asia Pacific region. I was also a member of the Victorian government LGBTI advisory committee under the Baillieu/Napthine administration.
My submission addresses the proposed “religious exemptions” in the draft. These are not so much exemptions as special privileges granting immunity from discrimination law.
The bill, as drafted, is badly flawed in that it introduces the apartheid principle into Australian law, creating one law for LGBTI people, and one law for everyone else. The same laws, and the same terminology, should apply to all persons who marry. Equality means equality, it is not divisible. All other considerations are secondary.
This in no way impacts the freedom of religion, because religion is a private matter, not a public one, nor does it affect the religious sacrament of marriage, which is a private matter, separate from legal civil marriage. Sacramental marriages have no legal standing. The Australian government, and hence this bill, has nothing to say on the subject of the religious sacrament, which is a matter wholly internal to each individual religion, as is right and proper.
It follows, therefore, that no bill, no law, can compel clergy of any faith to perform sacramental marriages which their religion does not endorse.
When clergy conduct civil, that is, legally recognized, marriages, they leave the private realm of religion and are then conducting a public service on behalf of the government.
In this case the law – which must be the same for all, regardless of sex, gender, gender identity or intersex status – and not the rules of their faith, applies.
If clergy wish to discriminate in the performance of the religious rite of marriage, that is between them and the religious institution to which they belong. In other words, the principles of their faith apply.
But they must not discriminate in the performance of legal, civil marriages. Here, the legal principle of equality before the law must apply.
Civil celebrants perform civil marriages only: once again, the principle of equality before the law must apply, and their services must be offered equally to all, regardless of personal convictions.
As regards businesses offering services to the marriage market, regardless of their ownership, or the convictions of the owners and operators, they must abide by the law and treat all customers equally.
To grant exemptions would establish the apartheid principle in Australian law: that people may be discriminated against in accordance with the convictions of the service provider. This over-reach is abhorrent, and should be rejected. It would set a dangerous precedent.
Some transitional arrangements might be considered, so that celebrants, wedding dress shops and the like would have a grace period in which to find other employment or business. In the case of small wedding-related family businesses of ten or fewer employees, or individual employees with a conscience problem, they should be able to claim an exemption for no longer than three years.
This temporary exemption should only be available to businesses already running one year before the act comes into force. It should not be available to new businesses or new employees. The same rule should apply to marriage celebrants.
These exemptions should not apply to larger religious businesses, or to individual premises attached to, or owned and operated by, religious institutions, such as church halls, holiday camps and the like, unless the use of these premises is restricted wholly and solely to adherents of the faith in question. If they are made available to the public, they must be made available to all the public without exception, in accordance with the principle that all are equal before the law.
We must be very careful of granting special privileges which place anyone above the law: the case for granting them at all must be overwhelming. And they should always be drawn as narrowly as possible, to avoid setting a precedent which might have unforeseen and unwanted impacts elsewhere.
I submit that the exemptions as drafted do not meet this test.